119 Wis. 239 | Wis. | 1903
The circuit judge rightly held the defendant’s tax deed void on its face. By one recital the tax deed declares that the lands were sold to the defendant, and by another recital that the certificates were assigned to the defendant. Thus it appears that it cannot be ascertained from the face of the deed to whom the lands were sold; in other words, it fails to state the name of the purchaser at the tax sale.
The appellant claims that if the tax deed be void the action was barred by sec. 1189a, Stats. 1898, as amended by sec. 21, ch. 351, Laws of 1899. This claim, however, cannot prevail, because it appears that the respondent (the original owner) on the 27th day of November, 1899, duly redeemed the lands in question from the taxes for the years 1896 and 1897; hence, under the proviso in the seetion cited, it does not apply.
. Another claim was made by appellant for the first time in this court, namely, that if the tax deed be void on its face it did not confer constructive possession upon the tax title claimant; that -the evidence showed that the lands were at all times vacant and unoccupied, and hence that ejectment could not be maintained against the tax title claimant, because he had never been either in actual or constructive possession of the premises. In support of this contention Cutler v. Hurlbut, 29 Wis. 152, is relied upon. There are at least two sufficient answers to this contention: First. It is alleged in the complaint that the defendant is in possession of the premises, and the answer states that the defendant has been in undisputed and continuous possession since the recording of his tax deed, and has made improvements thereon. Thus the fact of defendant’s actual possession is established by the pleadings, which have never been amended. The evidence showing that the lands were vacant was all given under the plaintiff’s objection, and was clearly inadmissible to controvert a fact which stood admitted by the pleadings. Second. The case of Cutler v. Hurlbut does not hold that ejectment may not be maintained by the original owner against a claimant under a void tax deed where the lands are vacant, but rather the reverse. That case was an action of ejectment by the original owner against a tax title claimant whose deed
By the Court. — Judgment affirmed.